Ikhtiyar (choice, free election by the responsible agent)

Ikhtiyar is, in the lexicon, preferring one thing to another; as a technical term, the intention toward a matter that lies between existence and non-existence, is within the agent's power, and is settled by preferring one side. ¹

A khiyar is an option granted either by the lawgiver, as the option of puberty, or by a contracting party, as the option of stipulation; every option is followed by a choice, but not every choice rests on an option. ¹ In the jurists' usage, irada is intention, the resolve to do an act and to turn toward it; a conditional divorce by allusion takes effect if the husband intended it. ¹ For the Hanafis, consent (rida) is not the same as choice: consent is inward satisfaction and the two do not necessarily go together, since a person may choose what he does not like. ²

The Hanafis draw the line in cases of coercion: non-compelling coercion, such as a feared beating or chains, spoils consent but not choice; compelling coercion removes consent and spoils choice. ²

For a choice to be valid, its maker must be responsible and free in his intention, with no one's authority over him. A choice is spoiled if a condition of responsibility fails, as with a madman or a non-discerning child, or if it rests on another's choice; a person compelled to do an act by compulsion that removes the will acts to repel the coercion, so his choice is spoiled because it depends on the coercer's choice. ² If a valid and an invalid choice conflict, the valid one is preferred where the act can be attributed to it; where it cannot, the act remains attributed to the invalid choice, as with coerced statements or acts a person cannot be an instrument for, such as eating or intercourse. The detail is under «compulsion». ²

Choice is granted by the lawgiver, as the one who cleans after relieving himself chooses between water and stones, or the one who breaks an oath chooses among the expiations; or by another party, as a partner offers his co-owner the choice of buying his share, selling his share to him, or selling the whole shop to a third party. Only the right-holder, or his lawful deputy, can grant it. ²

Rights are of two kinds: the rights of God and the rights of people. In the rights of God, such as a specified obligation like prayer or a prohibition like fornication, the servant has no choice as far as responsibility goes. In the rights of people, such as debt, gift, rescission for a defect, or pre-emption, he has a choice, granted by the lawgiver rather than held by his own independent authority, as al-Shatibi put it. ³ If the choice is between two lawful things, either may be chosen; between two forbidden things, the one with lesser harm must be chosen when one is compelled to choose; between a lawful and a forbidden thing, only the lawful may be chosen. ³

Choice is a condition for reward and punishment in the hereafter, and for punishment in this world. ³ Choice was prescribed to secure the interests of people, which are among the purposes of the law. The interest may belong to the chooser or to another when the choice is limited to him, or it may be collective. ³

The jurists discuss choice in many places: the choice of the one who cleans after relieving himself; the choice of a person praying alone between loud and silent recitation; a traveller's choice to combine prayers or not; a pilgrim's choice among ifrad, tamattu' and qiran; a husband's choice in a revocable divorce; a child's choice of a parent at the end of custody according to some jurists; the choice of the pre-emptor to take or leave; the imam's choice over lands conquered by force; and the judge's choice of a deterrent penalty in discretionary punishment. ^{3 4} Each is treated under its own heading, and contractual options such as puberty, manumission, defect and division of a deal are treated there too. ⁴